Citation Nr: 21002648 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-53 261 DATE: January 14, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that bilateral hearing loss began during active service or within one year of discharge, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that tinnitus began during active service or within one year of discharge, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1961 to April 1965. In June 2019, the Veteran testified at a video conference hearing before the undersigned. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss that was caused by his military service. Specifically, he claims that he experienced noise exposure in service and that this resulted in his current bilateral hearing loss. He, therefore, believes service connection is warranted. The Board has reviewed the record and with regard to a present disability, the October 2020 VA contract examination report shows that the Veteran had hearing acuity of 40dB or greater at 2000, 3000, and 4000Hz for the right ear and 1000, 2000, 3000, and 4000Hz for the left ear. Additionally, his speech discrimination scores on the MD CNC test were 72 percent for the right ear and 68 percent for the left ear. VA-VES Hearing Loss and Tinnitus examination, October 2020. This constitutes bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. Thus, the first element of Shedden/Caluza has been met. With regard to an in-service event or injury, the Board’s review of the Veteran’s service treatment records is negative for any complaints of hearing loss or other ear problems. However, his service treatment records show decreases in hearing acuity of 5-10dB at various frequencies between enlistment and separation. The Board will accept this as an in-service event or injury and the second element of Shedden/Caluza is arguably met. However, despite the current diagnosis and in-service decrease in hearing acuity, there is no evidence of a medical nexus to support a grant of service connection. The Veteran was afforded a VA contract examination and opinion to address the etiology of his bilateral hearing loss in October 2020. See VA-VES Hearing Loss and Tinnitus examination, October 2020. The examiner diagnosed the Veteran with hearing loss and noted the in-service decrease in hearing acuity. However, he also provided the military definition of a standard threshold shift (STS) for hearing and indicated that the Veteran’s in-service decreases did not constitute an STS for either ear. The examiner also concluded that, although the Veteran’s hearing at 3000Hz and 6000Hz was not tested on entrance to service, it was unlikely that there was a significant shift because his thresholds at separation were well within the normal limits. Given the separation measurements, it would be unlikely that there was an STS from entrance to separation. Finally, the examiner noted that there was no objective evidence to support an in-service noise injury, despite the Veteran’s assertions of in-service noise exposure. In light of the lack of an STS at any frequency, the examiner was unable to link the Veteran’s current hearing loss to his military service. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The only other medical evidence of record that addresses the etiology of the Veteran’s hearing loss is a March 2015 VA examination that also provided a negative nexus opinion. However, as discussed in the Board’s May 2020 remand, that opinion was not adequate. Accordingly, it will not be discussed any further. Consideration has been given to the Veteran’s contentions that his current hearing loss is related to his service. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses and causation findings based on medical knowledge of audiology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report that he had in-service noise exposure, he is not competent to link those complaints to a particular diagnosis or etiology. His assertions are therefore not competent evidence of a medical nexus. Moreover, the examiner specifically considered his contentions and still found his hearing loss was not related to service. The Board has also considered continuity of symptomatology as hearing loss is considered a chronic disease based on 38 C.F.R. § 3.303. Service connection may be established by showing continuity of symptoms since service. 38 C.F.R. § 3.303(a); see also Walker, supra; Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (holding that “the Secretary has made clear that sensorineural hearing loss is considered subject to § 3.309(a) as an ‘[o]rganic disease[] of the nervous system.’”). Continuity of symptomatology is established if a claimant demonstrates: (1) a condition noted during service; (2) evidence of post-service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptoms. As noted above, there is no evidence that the Veteran’s hearing loss or STS in hearing acuity began in service. Significantly, the October 2020 examiner indicates that the Veteran did not have hearing loss or an STS in his hearing acuity in service. His slight decrease at certain frequencies was not considered an STS and is not evidence of in-service hearing loss or decrease in hearing. There is also no evidence of any complaints of a decrease in hearing acuity within a year thereof. As such, service connection via continuity of symptomatology has not been established. Accordingly, the Board finds that the claim of entitlement to service connection for hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus that was caused by his military service. Specifically, he claims that he experienced noise exposure in service and that this is the result of his current tinnitus. He, therefore, believes service connection is warranted. The Board has reviewed the record and with regard to a present disability, the October 2020 VA contract examination report shows that the Veteran had tinnitus. The first element of Shedden/Caluza has been met. With regard to an in-service event or injury, the Board’s review of the Veteran’s service treatment records is negative for any complaints of hearing loss or other ear problems. However, his service treatment records show decreases in hearing acuity of 5-10dB at various frequencies between enlistment and separation. The Board will accept this as an in-service event or injury and the second element of Shedden/Caluza is arguably met. However, despite the current diagnosis and in-service decrease in hearing acuity, there is no evidence of a medical nexus to support a grant of service connection. As noted above, the Veteran was afforded a VA contract examination and opinion to address the etiology of his tinnitus in October 2020. The examiner diagnosed the Veteran with tinnitus but found that it was not related to service. Although the Veteran reported at this examination that his tinnitus began in service, he previously at a March 2015 VA examination indicated that he did not remember when it started. In light of this inconsistency, the examiner was unable to conclude that the Veteran had continuous tinnitus symptoms since service or to otherwise link his current tinnitus to service. The examiner also provided multiple other causes for tinnitus, including as a symptom of his nonservice-connected hearing loss or medications. Given the unclear date of onset, lack of demonstrated in-service auditory injury, and possibility of other causes, the examiner did not provide a positive nexus opinion. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl, supra; Nieves-Rodriguez, supra. The only other medical evidence of record that addresses the etiology of the Veteran’s tinnitus is a March 2015 VA examination report that also provided a negative nexus opinion. However, as discussed in the Board’s May 2020 remand, that opinion was not adequate. Accordingly, it will not be discussed any further. Consideration has been given to the Veteran’s contentions that his current tinnitus is related to his service. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses and causation findings based on medical knowledge of audiology. See Kahana, supra. While the Veteran is certainly competent to report that he had in-service noise exposure, he is not competent to link those complaints to a particular diagnosis or etiology. His assertions are therefore not competent evidence of a medical nexus. Moreover, the examiner specifically considered his contentions and still found his tinnitus was not related to service. Notwithstanding the aforementioned, due to his inconsistent report at the October 2020 examination that his tinnitus began in service versus his statement of uncertainty at the March 2015 examination as to when his tinnitus began, the Board is unable to provide weight to this contention. The Board has also considered continuity of symptomatology as tinnitus is considered a chronic disease based on 38 C.F.R. § 3.303. Service connection may be established by showing continuity of symptoms since service. 38 C.F.R. § 3.303(a); see also Walker, supra; Fountain, supra. As noted above, the evidence is not clear that the Veteran’s tinnitus symptoms began in service. There are no documented in-service complaints of tinnitus or ringing in the ears. Although the Veteran now claims that his tinnitus began in service, he told a prior March 2015 VA examiner that he was unsure of when his tinnitus began. It was not until he was denied service connection in the March 2015 rating decision that the Veteran began to assert that his tinnitus began in service. Given the timing of this change in claimed onset, the Board finds his current assertion that it began in service less credible than the initial assertion that he did not know when it began. See Curry v. Brown, 7 Vet 59 (1994); Cartwright v. Derwinski, 2 Vet. App. 24, 25-26 (1991) (a pecuniary interest may affect the credibility of a claimant’s lay testimony). Moreover, there is no evidence of an acoustic injury in service or complaints of a tinnitus in service or within a year thereof. As such, service connection via continuity of symptomatology has not been established. Accordingly, the Board finds that the claim of entitlement to service connection for tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.